Nandutu v University of Sydney (No 2)

[2020] NSWSC 445

Supreme Court

New South Wales

Medium Neutral Citation:	Nandutu v University of Sydney (No 2) [2020] NSWSC 445
Hearing dates:	On the papers
Decision date:	24 April 2020
Jurisdiction:	Common Law
Before:	Button J
Decision:	(1) With regard to the application heard before Fagan J on 4 March 2016, no order as to costs. (2) The plaintiff, Ms Susan Nandutu, must pay the costs of the defendant, the University of Sydney, of the substantive proceedings before me. (3) The plaintiff must pay the costs of the defendant of all interlocutory steps with regard to which costs were ordered to be in the cause, whether by another judicial officer or by me. (4) Subject to Order (1), the plaintiff must pay the costs of the defendant of all interlocutory steps with regard to which costs were reserved, either by any other judicial officer, or by me.
Catchwords:	COSTS – substantive matter resolved in favour of defendant – plaintiff self-represented and indigent – plaintiff to pay costs of substantive proceedings – plaintiff to pay costs of majority of interlocturoy proceedings in which costs not previously determined
Cases Cited:	Nandutu v University of Sydney [2020] NSWSC 352 Northern Territory v Sangare [2019] HCA 25
Category:	Costs
Parties:	Susan Nandutu (Plaintiff) University of Sydney (Defendant)
Representation:	Counsel: B Tronson (Defendant)   Solicitors: Susan Nandutu (Self-represented) Minter Ellison (Defendant)
File Number(s):	2015/287280

Judgment

Background

1. On 8 April 2020, I delivered a determinative judgment in the substantive proceedings between Ms Susan Nandutu (the plaintiff) and the University of Sydney (the defendant). The result was a comprehensive victory for the defendant: see Nandutu v University of Sydney [2020] NSWSC 352.

2. In general accordance with my orders on that occasion, the parties have provided me with written submissions about the question of costs, on the basis that the question would subsequently be determined by me in Chambers.

Submissions about costs

3. The submission of the defendant, in a nutshell, was that costs should follow the event; that all interlocutory steps with regard to which costs had been ordered to be in the cause should be subsumed in such an approach; and that any interlocutory steps with regard to which another judicial officer or I had reserved costs should be similarly subsumed.

4. In her written submissions, the plaintiff did not engage with any aspect of the detail of those submissions; as ever, because she is representing herself and in an emotionally difficult situation, I make no personal criticism of her or her submissions.

5. Her written submissions did refer to the propositions that there is some mis-numbering with regard to the case file number referred to in my substantive judgment; that she is appealing against the entirety of my judgment; that she is indigent, she says as the result of the actions of the defendant; that a comprehensive costs order would “totally ruin” her and her livelihood; that the legal team of the defendant has behaved oppressively and deceptively; and that erroneous if not deliberately false material has been placed before this Court by the same persons (the last two propositions are repetitions of submissions that the plaintiff has made in the course of these proceedings over many years). She makes reference to many paragraphs of many documents previously filed in the proceedings in support of those propositions.

Determination about costs

6. Turning first to the submissions of the plaintiff, I accept on the balance of probabilities that she is without funds. I also accept, to the same standard, that a comprehensive costs order against her, if enforced, would further damage her financial position. But the impecuniosity of a litigant is not relevant to whether a costs order should be made against that litigant: see Northern Territory v Sangare [2019] HCA 25.

7. As for the rest of what the plaintiff has written, she is of course perfectly entitled to exercise her rights of appeal as she sees fit. But the lodging of an appeal by her is not relevant to the question of costs that arises now.

8. Similarly, as I have said, allegations against the defendant and its legal representatives have been made by the plaintiff on many occasions during the course of this litigation. None of them is established in my mind on balance, and accordingly none of them plays a role in my resolution of the question of costs.

9. Turning to the submissions of the defendant, I agree that, in light of its victory, the general rule of costs following the event should apply. There is no reason to adopt any other course with regard to the substantive proceedings.

10. As for discrete interlocutory disputes that led to costs being ordered to be in the cause by other judicial officers or me, the cause having been determined in favour of the defendant, all of those matters will be the subject of an order for costs.

11. As for those interlocutory steps with regard to which costs have already been determined, including those in which no order as to costs was deliberately made, they have been resolved and do not require further analysis.

12. As for those disputes that led to costs being reserved by me, I consider that all of those matters should also be subsumed in the overarching costs order. To repeat: the plaintiff put nothing before me with regard to any one of them to suggest an alternative outcome.

13. As for those disputes that led to costs being reserved by other judicial officers, it is impossible for me to reconstruct now the “nuts and bolts” of controversies heard before other judicial officers extending over a period of many years, other than examining carefully all of the orders recorded on Justicelink with regard to this matter since early 2016. Regrettably, the plaintiff did not sufficiently engage with the written submissions of the defendant to express a contrary position with regard to any one of them. Save for what appears immediately below, I accept the submission of the defendant that all such matters should also be subsumed in same approach.

14. In that regard, I rely in particular upon the duty to the Court of counsel for the defendant – intensified in light of the fact that her opponent is unrepresented – in adopting her proposition at [15] of her written submissions that “there is no reason why the University ought not to have its costs of each of these occasions as part of the costs of the proceedings”.

15. The exception is as follows. On 4 March 2016, Fagan J referred the plaintiff for pro bono legal assistance on her application. Contrary to the written submissions of counsel for the defendant, I believe that the appropriate order with regard to that discrete stage of the matter is that each party pay its own costs.

Orders

16. I make the following orders in Chambers:

1. With regard to the application heard before Fagan J on 4 March 2016, no order as to costs.

2. The plaintiff, Ms Susan Nandutu, must pay the costs of the defendant, the University of Sydney, of the substantive proceedings before me.

3. The plaintiff must pay the costs of the defendant of all interlocutory steps with regard to which costs were ordered to be in the cause, whether by another judicial officer or by me.

4. Subject to Order (1), the plaintiff must pay the costs of the defendant of all interlocutory steps with regard to which costs were reserved, either by any other judicial officer, or by me.

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Decision last updated: 24 April 2020